Justice: Conceptions of justice with special reference to Rawl's theory of justice and its communitarian critiques
Conception of justice:
The notion of justice is used by humans since prehistoric time. Justice is a legal, moral and ontological phrase. The concept of justice has a central place since emergence of human civilization. In simple term, Justice is action in accordance with the requirements of some law. Whether these rules are grounded in human consensus or societal norms, they are supposed to ensure that all members of society receive fair treatment. Issues of justice arise in several different spheres and play a significant role in causing, perpetuating, and addressing conflict.
Justice have evolved through various varies opinion. The ancient Indian thinker propagated the Indian concept of justice such as Manu and Kautilya. Manu have divided law into civil and criminal matters. Kautilya have opined that only state can provide fair justice. In Western political thought, major school of justice is Plato's conception. He observed that justice is the remedy for saving society against two evil forces such as ignorance and political selfishness. Aristotle defined justice with proportionate equality (Avnindra Kumar verma, 2010).
Kelsen stated that there cannot be a formal science of justice since even if a theory of justice were logically constructed; it would be based on emotive premises. It is not possible to identify in a scientific way the supreme values that a just order of social life should attempt to provide. It therefore, appears that the concept of justice is not amenable to rational determination (1957). According to Kelson the longing for justice is men's eternal longing for happiness. It is happiness that man cannot find alone, as an isolated individual and hence seeks in society. Justice is social happiness guaranteed by social order (1957).
Justice is divided into three sections:
Social Justice: Social justice is important form of justice to most societies. It involves the act of setting up a system of laws established by the society itself, and then having officials enforce the laws. Social justice is usually influenced by the leading religion and governmental group. This is usually a major benefit to the people because it establishes an ethical code of conduct for the masses. Through social justice everyone knows what's right and wrong according to their peers, and they will be able to understand the disciplinary action that will be placed on them if they go against those laws.
The major problem with this system of justice is that it permits the majority to create the terms of justice and the ethics of the minorities will usually be treated as less important, or completely disregarded. This can be seen in many societies with controversial issues, for example, Euthanasia. The majority may think that euthanasia is wrong and pass laws for punishing those who assist others in suicide. These laws are viewed as ethically correct to the masses, however for the few who think that euthanasia is an acceptable practice, they are now considered wrong. Thus, social justice is for some and not for others.
Personal Justice: This happens to everyone irrespective of their moral values. Personal justice occurs when a person has an emotional response to their actions as a product of a person's upbringing and their learned ethics. The view of personal justice is usually similar to the justice of the society a person was raised in, but as a person matures and experiences life and other cultures their personal ideals of justice usually change. Personal justice is very supportive because it obeys to a person's own ethics. Everyone is different and changing thus making social justice clumsy and hard to work with on an individual scale, but personal justice will always be fitting to a person's own beliefs because they are part of a person's beliefs.
Supernatural Justice: It is supposed by many people that justice is controlled by a god, energy, or force. It is also believed that this entity is dependable and exhibits perfect justice. Most people who believe in supernatural forms of justice take comfort in the fact that justice will be served to everyone and are also deterred from doing what is wrong because they fear the supernatural justice being brought upon themselves. Most people who do not believe in a supernatural form of justice believe that it is a human creation designed to fright people into doing what a religion deems as right, and that people are more sedated in the thought that a god or similar entity will punish the wicked for them.
It can be appraised that Justice can be used to mean numerous things, like the importance of having rights, fairness, and equality. People will think it's unjust to have their rights violated (like being thrown in prison without being found guilty in a court of law); or being unfairly harmed by someone unwilling to pay compensation for the harm done; or being unfairly treated as an inferior (unequal) who isn't hired for a job despite being the most qualified person for the job. Theories of justice are not certainly "moral" theories because "justice" is more specific and could even be separate from morality completely.
Rawl's theory of justice:
John Rawls, a great philosopher, published several books and many articles. He is primarily known for his book A Theory of Justice, an effort to define social justice. The work has greatly influenced modern political thought. Rawls' theory of justice as fairness encompasses a central contention that principles of justice is essential to the structure of a constitutional democracy. It must be viewed as political in contrast to more comprehensive moral, philosophical or religious doctrines. One of the most interesting modern attempts to shield principles of justice are found in John Rawls, A Theory of Justice, as now reformulated in political liberalism.
In A Theory of Justice, Rawls started with the statement that, ''Justice is the first virtue of social institution,'' meaning that a good society is one structured according to principals of justice. Rawls asserts that existing theories of justice, developed in the field of philosophy, are not adequate: ''My guiding aim is to work out A Theory of Justice that is a viable alternative to these doctrines which have long dominated our philosophical tradition.'' He calls his theory aimed at formulating a conception of the basic structure of society in accordance with social justice as fairness.
Rawls sets forth to determine the essential principles of justice on which a good society may be based. He explains the importance of principles of justice for two key purposes: first, to ''provide a way of assigning rights and duties in the basic institutions of society''; and secondly, to ''define the appropriate distribution of the benefits and burdens'' of society. He observes that, by his definition, well-ordered societies are rare due to the fact that ''what is just and unjust is usually in dispute.'' He further notes that a well-ordered and perfectly just society must be formulated in a way that addresses the problems of ''efficiency, coordination, and stability.''
Rawls suggested to develop a theory of justice by reviewing the social contract tradition of theorizing about justice related with the 17th and 18th century writers such as John Locke, Jean-Jacques Rousseau, and Immanuel Kant. Locke realised legitimate political authority as deriving from the free and voluntary consent of the governed, from a contract or agreement between governor and governed person. Rawls stated that he will take the social contract idea to a higher level of abstraction. According to Rawls, justice is what free and equal persons would agree to as basic terms of social cooperation in conditions that are fair for this purpose. This idea he called "justice as fairness." The conditions that Rawls takes to be most appropriate for the choice of principles of justice constitute "original position." Rawls interpreted the task to be choosing principles for a "well-ordered society," a society that is effectively regulated by a public conception of justice and whose members understand and give loyalty to this public conception. Furthermore, a third condition holds that it is common knowledge among all members of society that other two hold. Rawls belived we need to get clear about first-best theory before we can be in a position to think through problems that arise when institutions are not just and some persons are not disposed to comply with requirements of justice.
John Rawls sets out some basic moral principles of justice which a constitutional democracy should satiate:
- The maximization of liberty are essential for the protection of liberty itself.
- Equality for all, both in the basic liberties of social life and also in distribution of all other forms of social goods, subject only to the exception that inequalities may be permitted if they produce the greatest possible benefit for those least well off in a given scheme of inequality (the difference principle).
- Fair equality of opportunity and the elimination of all inequalities of opportunity based on birth or wealth. Rawls theory differs from utilitarianism in three significant ways.
Rawls writes, "For us the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation. By major institutions I understand the political constitution and the principal economic and social arrangements. Thus the legal protection of freedom of thought and liberty of conscience, competitive markets, private property in the means of production, and the monogamous family are examples of major social institutions" (p. 6).
Rawls was discontented with the traditional philosophical arguments about what makes a social institution just and about what justifies political or social actions and policies. The utilitarian argument revealed that societies should follow the greatest good for the greatest number. This argument has numerous problems, including, especially, that it seems to be consistent with the idea of the tyranny of majorities over minorities. Utilitarians see justice as part of morality and don't see justice to have a higher priority than any other moral concern. In particular, utilitarians think that we should promote goodness, and many think that goodness can be found in a single good; such as happiness, flourishing, well-being, or desire satisfaction. Utilitarian ideas of justice connect morality to the law, economic distribution, and politics. The intuitionist argument stated that humans sense what is right or wrong by some innate moral sense. This is also problematic because it simply explains away justice by saying that people "know it when they see it," and it fails to deal with the many contradictory human intuitions.
Another major contributor of theory of justice was Nozick's Libertarian Theory of Justice. Libertarians favour negative rights (and the right to property in particular), small government, and a free market. Nozick argues that people have "Lockean rights" by their very nature prior to any political institutions, such as the right to property. For Nozick these rights are absolute and cannot be violated for any reason except perhaps if the only alternative action would directly violate even more rights. According to Nozick's theory of justice, we have negative rights (to be left alone) but denies that we have positive rights (to social welfare or education). Rawls agreed with Nozick that justice is quite separate from morality and he too rejects utilitarian forms of justice. He first suggested a new way to learn about principles of justice, the original position. The original position asks people to imagine that a group of people will get to decide the principles of justice. These people do not know who they are, they are self-interested, and they know everything science has to offer. He argued that in a veil of ignorance they could not be as biased towards their profession, race, gender, age, or social status because they would not know which categories they belong to. As far as self-interest is concerned, Rawls argued that they will want principles of justice that will "fairly distribute" certain goods that everyone will value "primary social goods". Rawls approved with Nozick that we have negative rights and no positive rights, but he argues that social and economic inequalities are unjust unless they meet certain requirements. But Rawls disagreed with utilitarian's that economic inequality is justified if it maximizes happiness by providing rewards to being productive members of society and not if such inequality doesn't help those who are the worst off.
Rawls attempts to establish a coherent account of social justice through the social contract approach. This approach holds that a society is in some sense an agreement among all those within that society. If a society were an agreement, Rawls asks, what kind of arrangement would everyone agree to? He stated that the contract is a purely hypothetical one. He does not argue that people had existed outside the social state or had made agreements to establish a particular type of society. Rawls construed that a social contract is useful for deliberating justice because a social contract lends itself to the formulation of principles of justice. Within any society, there will be different opposing definitions of justice. Rawls' defined social justice in terms of general principles to provide solution of differing views. Principles of justice will be much broader in scope than specific definitions of justice. Principles will be much more readily agreed upon by people then specific definitions of justice. Rawls stated that "these principles are to regulate all further agreement, they specify the kinds of social cooperation that can be entered into and the forms of government that can be established." Justice constituted by principles will serve two functions. The first function is that it will provide a framework which can be more or less agreed upon by all members of society. The second function of a principle is that it outlines a code of moral conduct which does not need to be governed by specifics.
Rawls contended that principles of justice will be agreed upon in hypothetical social contract which Rawls calls "the original position." Rawls says, "Thus we are to imagine that those who engage in social cooperation choose together, in one joint act, the principles which are to assign basic rights and duties and to determine the division of social benefits. Men are to decide in advance how they are to regulate their claims against one another and what is to be the foundation charter of their society. Just as each person must decide by rational reflection what constitutes his good, that is, the system of ends which it is rational for him to pursue, so a group of persons must decide once and for all what is to count among them as just and unjust."
Rawls contributed a lot for reviving an interest in the substantive matter of political philosophy. He originated the concept "Goodness as rationality," which considers human beings as capable of realistically defining what "good" and "the good life" is. Rawls' societal structure is based on this concept. Rawls differentiates between the general and the special conceptions of justice. 'All social primary goods - liberty and opportunity, income and wealth, and the bases of self-respect - are to be distributed equally. Rawls's theory is simple and philosophical. According to him each person possesses a sacredness founded on justice that even the welfare of society as a whole cannot succeed.
It is the central argument of Rawls that the principles of justice essential to the structure of constitutional democracy must be characterized as political in contrast to more comprehensive moral, philosophical and religious doctrines on which agreement is not possible within the pluralism of modernity, and that the concept of justice is not its being true to an antecedent moral order, but its congruency with our self-understanding within history and traditions embedded in our public life. In A Theory of Justice, John Rawls contends that justice is to be understood as fairness. The theory of justice as fairness is an ethical theory which argues that broad principles are able to capture the nature of what constitutes a just society. A just society is one which has institutions which protect individual rights and liberties of all citizens and has a pattern of distribution of resources.
According to Rawls, the term "justice as fairness" comes from examining the agreements made by individuals in the original position. Rawls says, "the original position is, one might say, the appropriate status quo, and thus the fundamental agreements reached in it are fair." Principles of justice are based upon agreements made in the original position. The structure of the original position guarantees that decisions will be made so that the structure of a just society will be fair.
The idea of distributive justice in Rawls theory requires that the courts should take a liberal view of the premises of law and so interpret them as to distribute benefits to the largest number of people so that the harsh effects of the technicalities of law are contained within the narrowest limits. Distributive justice concerns institutions in a society. According to Rawls, if an institutions adheres to the principles of justice as fairness, it will be a just institution. In the structure of Rawls' theory of justice as fairness, institutions are considered as the central focus. Rawls says that the principles of formal justice apply to institutions. Rawls says: we have seen that these principles are to govern the assignment of rights and duties in these institutions and they are to determine the appropriate distribution of the benefits and burdens of social life. The principles of justice for institutions must not be confused with the principles which apply to individuals and their actions in particular circumstances (Rawls, John, 1971).
Rawls described an institution as a public system of rules which has various offices and goals. These rules define what is permissible and what is not. The rules of an institution also govern what the institution does and what its members are responsible to do. According to Rawls, there are two possible notions of an institution. The first of these is that of an abstract object. The second is that of the abstract object established or concretized in a society. Rawls says, "it seems best to say that it is the institution as realized and effectively and impartially administered which is just or unjust. The institution as an abstract object is just or unjust in the sense that any realization of it would be just or unjust (Rawls, John, 1971)." Rawls is concerned primarily with actual institutions.
Rawls always stated the theoretical views and are often difficult for common people to understand. But he has given new specificity and dynamism to one of the most valuable legacies of the liberal political tradition. He stated that a person has a dignity and worth that social structures should not be permitted to infringe. Both in A Theory of Justice and in subsequent work, Rawls has held that the moral judgments of ordinary people are an essential starting point for good political deliberation. But he has also stressed that philosophical tradition and argument have an important role to play in categorization to what we think, particularly by putting substitutes before us with sufficient rigor and clarity that we fully appreciate how to choose among them. Following quote of Rawls reveals what his methodology is- "John Rawls (1999) notes, "well-ordered people have a duty to assist burdened societies" (Benhabib, P. 106)
But Rawls highlights that the concept of justice as political is not a mere modus vivendi, for it embodies an overlapping consensus by specifying the fair terms of cooperation between citizens that are regarded as free and equal. This consensus incorporates the concept of primary goods: basic right and liberties, powers and prerogatives of office; income and wealth; the basis of self-respect. It also encompasses the "difference principle": in which economic inequalities are allowed so long as this improves everyone's situation including that of the least advantaged. The overlying consensus, Rawls further postulates, is not a consensus simply in accepting a certain authority, or simply as compliance with certain institutional arrangements. "For all those who affirm the political conception start from within their own comprehensive view and draw on the religious, philosophical and moral grounds it provides" (John Rawls, 1993).
Rawls theory of justice gripped under criticism. There were many critical reaction to Rawls' approach to defining the notion of justice as fairness that has centred upon an alleged incoherency. His problematic in contention was that principles of justice must be seen as political in opposition to a more comprehensive view of the good, while yet also believing that justice as political does have a moral basis were also criticized.
Political philosophers such as Alasdair MacIntyre, Michael Sandel, Charles Taylor and Michael Walzer opposed Rawls' statement that the principal task of government is to secure and distribute fairly the liberties and economic resources individuals need to lead freely chosen lives. Certain core arguments meant to contrast with liberalism's devaluation of community recur in the works of these four theorists (Berten et al. 1997), and for purposes of clarity one can distinguish between claims of three sorts: methodological claims about the importance of tradition and social context for moral and political reasoning, ontological or metaphysical claims about the social nature of the self, and normative claims about the value of community.
According to Patrick Neal, Rawls' theory of justice involves an unanswered tension between political and metaphysical implications. Rawls speaks of justice as fairness as a political concept independent of controversial philosophical, moral and religious doctrines, and arising from an interpretive understanding within the traditions of constitutional democracy. Yet Rawls believes, at the same time, that justice as fairness is not to be interpreted as a Hobbesian mosus vivendi, it has a moral component, serving as a political agreement between citizens viewed as free and equal persons, an "overlapping consensus" which more comprehensive philosophical, moral and religious doctrine can accept in their own way.
In Neal's opinion, Rawls is "wavering" between metaphysical and political interpretations. "Interpreting it along political lines, Rawls must be careful to keep it from being rendered too politically, lest it become Hobbesian. Yet the remedy for the specter of Hobbesianism is a measure of Kantianism, and this serves only to take justice as fairness underneath the surface, philosophically speaking, raising the spectre of controversial metaphysical arguments or turning justice as fairness into a sectarian moral ideal." Neal is influenced that if justice as fairness is to remain a moral theory, as Rawls wishes, the conservative beliefs of contemporary people must be something more than mere settlements (Patrick Neal, 1990).
William Galston stands a similar objection against Rawls' theory of justice. Rawls' concept of a political constructivism, he notes, exemplifies principle of justice that is established by a procedure of construction without appeal to prior moral facts. But the difficulty is that constructivists must offer some support for the specific conception of the person they choose to employ.
Galston points out that Rawls' demands to a conception of justice, appropriate to a democratic culture. But unless one has arena prior reason for preferring democratic to non-democratic cultures, this puts justification back one step without resolving it. "Rawls' reconstructed theory is divided against itself. It is clearly Kantian but implicitly Hegelian. It avoids formalism only at the cost of abandoning the Kantian standpoint above history and culture. Instead, the content of its principle is provided by the shared beliefs of the democratic community." Galston recognised that Rawls' deviation from Kant in the name of social practices is required and proper to overcome the dualism of Kant's moral theory; to bind the circumstances of ordinary life into our first principles in order to reduce the gap between theory and practices. "But it is also to forget that the point of having first principles is to judge our institutions and practices and not merely codify them" (William A. Galston, 1991).
Feminist opponents of Rawls, such as Susan Moller Okin, mainly focused on the extent to which Rawls' theory could account for injustices and hierarchies embedded in familial relations. Rawls argued that justice ought only to apply to the "basic structure of society". Feminists, assembling around the theme of 'the personal is political', took Rawls to task for failing to account for injustices found in patriarchal social relations and the gendered division of labour, especially in the household.
Some egalitarian challengers have opposed the view of Rawls' on primary social goods. For instance, Amartya Sen has argued that we should attend not only to the distribution of primary goods, but also how effectively people are able to use those goods to pursue their ends. In a related vein, Norman Daniels has speculated why healthcare should not be treated as a primary good and some of his subsequent work has addressed this question, arguing for a right to health care within a broadly Rawlsian framework.
Philosopher Allan Bloom, also disapproved Rawls for failing to account for the existence of natural right in his theory of justice, and stated that Rawls absolutizes social union as the ultimate goal which would conventionalize everything into artifice.
Other philosophers like G.A. Cohen criticized Rawls' theory. Cohen's criticisms are levelled against Rawls' avowal of inequality under the difference principle, against his application of the principle only to social institutions, and against Rawlsian fetishism with primary goods (again, the metric which Rawls chooses as his currency of equality).
It can be understood that Justice is a notion that involves people getting what they have coming to them. Justice can be categorized into three major categories: social, personal, and supernatural. Social justice includes a government's legal system, personal justice involves a person's own ethics, and supernatural justice refers to karma, benevolent gods.
The principles of justice so far looked at are for institutions. To evaluate Rawls' theory, it can be concluded that his formal justice is based upon a hypothetical situation known as "the original position." Persons in the original position are unaware of specific personal considerations and interests. They find themselves behind a veil of ignorance. Persons in the original position will construct a theory of justice which is not based upon personal interests. Under these restrictions, people will agree to principles of justice which address different aspects of social life. The first principle governs the protections of rights and duties so that individual liberties are equal to all citizens. The second principle concerns economics and the possibility for people to hold various social positions. According to the second principle, inequalities in economics and social position are permissible provided that individual liberties are not compromised, the inequality can be shown to be to everyone's advantage.
John Rawls is conceivably the most noteworthy intellectual in philosophical ethics since ancient times. It is nearly impossible to address ethics in contemporary philosophy without saying something about John Rawls. Central to his theory of justice are the concepts of fairness and equality from behind what he terms a "veil of ignorance". Rawls's veil of ignorance is a component of the way people can construct society. He refers to an "original position" in which a person is attempting to determine a fair arrangement for society without any preconceived notions or prejudices. Rawls aims to develop a theory of justice that will be greater to utilitarianism and that will supplant what he calls "intuitionism". According to Rawls, a moral theory is a set of principles that (1) stipulates what information we need in order to decide what to do and (2) determines what should be done in any circumstances, provided we have the information regarding those circumstances that the principles themselves specify to be relevant. In other words, no further evaluation is required; the principles embody the evaluation needed to identify morally right policies. With a theory, given a specification of the pertinent facts and a statement of the principles, it can be concluded for steps to be taken.